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Ilya Shapiro’s Latest “Funny Brief”

At Law.com, Tony Mauro reports on the latest brief that Ilya Shapiro filed with the US Supreme Court:

The Cato Institute’s Ilya Shapiro has done it again. For the third year in a row, he has filed what he calls one of Cato’s “funny briefs” with the U.S. Supreme Court, an amicus curiae brief that celebrates, more or less, the objectionable speech at issue in a First Amendment case.

The latest brief weighed in on Lee v. Tam, a challenge to the U.S. Patent and Trademark Office decision to deny trademark registration to the Asian-American rock band called The Slants because the name is “disparaging.” The case will be argued Jan. 18.

On the front page of the brief filed on Dec. 16, Shapiro identified his clients collectively as “a basket of deplorable people and organizations,” and on the next page he tersely reframed the issue in the case this way: “Does the government get to decide what’s a slur?”

He proceeded to review the history of disparaging names that “long ago entered our political vocabulary, encapsulating criticisms more succinctly than any polite term ever could.” The list includes the Know Nothing Party, the Democratic Party’s donkey, and “suffragette”—a word whose diminutive suffix was a put-down of women fighting for the right to vote.

Shapiro even dropped a footnote reminding the justices that “questioning the character of our politicians is such a cherished American tradition that a member of this court recently engaged in it herself.” That was a clear reference—he mentioned her by name—to Justice Ruth Bader Ginsburg’s description this summer of then-presidential candidate Donald Trump as a “faker,” an epithet she later said she regretted.